Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698938395386.pdf (South Africa)
Maandag, 15 Augustus 2011] No 95—2011] DERDE SESSIE, VIERDE PARLEMENT HERDRUK 2528 PARLEMENT VAN DIE REPUBLIEK VAN SUID-AFRIKA AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE MAANDAG, 15 AUGUSTUS 2011 INHOUDSOPGAWE TERTAFELLEGGINGS Nasionale Vergadering en Nasionale Raad van Provinsies 1.

Minister van Finansies .................................................................... 2528 2.

Minister van Korrektiewe Dienste .................................................. 2529 3.
Minister van Polisie ........................................................................ 2529 KOMITEEVERSLAE Nasionale Raad van Provinsies 1.

2.

Sekuriteit en Staatkundige Ontwikkeling ....................................... 2530 Petisies en Lede se Wetgewende Voorstelle .................................. 2544 TERTAFELLEGGINGS Nasionale Vergadering en Nasionale Raad van Provinsies 1.
Die Minister van Finansies (a) Government Notice No R. 617 published in Government Gazette No 34498 dated 29 July 2011: Amendment of Rules (DAR/91), in terms of the Customs and Excise Act, 1964 (Act No 91 of 1964).
AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2529 [Maandag, 15 Augustus 2011 (b) Government Notice No 615 published in Government Gazette No 34478 dated 29 July 2011: State Security Agency: Notice in terms of section 92 of the Public Finance Management Act, 1999 (Act No 1 of 1999).

(c) Government Notice No R. 625 published in Government Gazette No 34494 dated 5 August 2011: Amendment of Schedule No.

4 (No.

4/342), in terms of the Customs and Excise Act, 1964 (Act No 91 of 1964).

2.
2.

Die Minister van Korrektiewe Dienste (a) Draft Regulations made in terms of the Correctional Services Act, 1998 (Act No 111 of 1998).

3.

Die Minister van Polisie (a) Report of the Independent Complaints Directorate on Domestic Violence for the period July – December 2010, tabled in terms of section 18(5)(c) of the Domestic Violence Act, 1998 (Act No 116 of 1998) [RP 47-2011].
AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2530 KOMITEEVERSLAE Nasionale Raad van Provinsies 1.

Report of the Select Committee on Security and Constitutional Development on Budget Vote 24: Justice and Constitutional Development, dated 08 June 2011 1.
Introduction The Select Committee considered the strategic plan of the Department of Justice and Constitutional Development (the department) and its budget allocation on 12 April 2011 and reports as follows: The officials presenting on behalf of the Department of Justice and Constitutional Development comprised: • Dr K De Wee, Chief Operations Officer • Mr P Du Rand, Acting Deputy Director General • Mr D Mpholo, Chief Director: Human Resources • Ms T Ramanyimi, Chief Director: Facilities manager • Mr L Basson: Acting Chief Master • Ms K Pillay: Acting Chief • Mr D Rudman: DDG Legislative Development • Mr S Robbertse: State Law Advisor • Mr J Johnson: Acting Chief Financial Officer This report provides an overview of the presentations made by the Department of Justice and Constitutional Development.
The focus of the briefings included Budget Vote 24 and the Strategic Plan for 2011/16.1 2.

Overview of Proceedings 2.1 Summary of the vote The department has five programmes: • Administration; • Court Services; • State Legal Services; • National Prosecuting Authority allocation; and • Auxiliary and Associated services 1 Full presentations can be obtained from the Committee Secretary, Mr G Dixon, at 021 – 403 3771.
AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2531 [Maandag, 15 Augustus 2011 Table 1: Overall programme allocation for the MTEF: 2010/11 – 2013/14 Budget 2010/11 – 2013/14 Programme R thousand Administration Court Services State Legal Services National Prosecuting Authority Auxiliary and Associated Services Total Direct charge for Judges and Magistrates’ salaries Total 2.2 Strategic Priorities 2010/11 1 427.4 3 994.2 722.1 2 684.3 1 959.5 10 787.5 2011/12 1 625.2 4 341.7 750.7 2640.3 2 055.7 11 413.6 2013/14 2012/ Dr De Wee provided an overview of the DoJ&CD strategic objectives and allocations for the 2011 – 2016 MTEF cycles.
The DoJ&CD strategic plans were drafted according to the new National Treasury Framework that describes a strategic plan as a plan that identifies strategically important outcomes and orientated goals and objectives against which the public institutions’ medium term results can be measured and evaluated by Parliament, provincial legislatures and the public.
2.2.1 The mandates of the DoJ&CD informing its strategic priorities a) Within the DoJ&CD’s broader Constitutional mandate, the department had distilled its mandate into two parts namely, i. ii.

to provide an environment for the effective and efficient administration of justice; and the to promote constitutional development development implement to programmes to deepen and nurture our constitutional democracy.
legislation through and of b) The DoJ&CD has legislative mandates that are relevant to its strategic priorities.

These are: i.

The establishment and functioning of the superior courts, magistrate’s courts and special courts; ii.

The appointment of judges and magistrates, their conditions of service, discipline and training; iii.
The establishment and functioning of the National criminal Prosecuting Authority, proceedings, investigation of organised crime and corruption and the forfeiture of assets obtained through illicit means; conduct of the AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2532 iv.
The establishment and functioning of bodies responsible for legal aid, law reform; v. The support to Chapter Nine institutions (the Human Rights Commission Act, 1994, and the Public Protector Act, 1994).

vi.

The appointment of masters of the high courts and the administration of the Guardian’s Fund and deceased and insolvent estates; vii.

The provision of legal advisory services to government departments; viii.

The enforcement of people’s rights (the PAJA, PAIA and PEPUDA); and ix.
The protection of vulnerable groups (the Child Justice Act, 2008, Sexual Offences and Related Matters Amendment Act, Maintenance Act, etc.

c) The DoJ&CD also aligns the policy mandates of government within its strategic objectives.

These are: i. JCPS Cluster Delivery Agreement The Minister has an executive responsibility of coordinating and leading the JCPS cluster.
Through its leadership of the cluster, the department monitors and coordinates the overall implementation of cluster strategies and activities.

ii.
ii.

Transformation of the judicial system transformation of The following key programmes: the judicial system entails the Institutional reforms to strengthen the Office of the Chief Justice (R117 million in 2011/12) The Constitution Eighteenth Amendment seeks to affirm the Chief Justice as the head of the judiciary with the the responsibility of developing and monitoring implementation of norms and standards the for exercising of judicial functions.
Other initiatives include the Judicial Service Commission Act 2008, which establishes a Code of Judicial Conduct, regulations on Judges’ Registrable Interests and establishment of the Judicial Education Institute.
Rationalisation of the superior courts The Constitution Amendment Bill and the Superior Courts Bill seek to give effect to the Constitutional Court as the apex court in the Republic and regulating the jurisdiction of the Constitutional Court and the Supreme Court of Appeal to provide a single “High Court of South Africa” with various provincial divisions.
Re-alignment of magisterial districts with municipal districts (R10 million in 2011/12) AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2533 [Maandag, 15 Augustus 2011 The department continues to implement programmes that seek to correct the old magisterial districts that were based on homelands and the former RSA territory.

The transformation entails giving adequate jurisdiction to these courts to function as fully fledged courts.
legislative Review of the civil justice system (R5 million in 2011/12) Intermediate interventions have been implemented to address some of the pressing gaps in the lower courts.

These include the amendment of the Magistrate’s Courts Act, 1944, to extend civil and divorce jurisdiction to regional courts and increase the number of Small Claims Courts.

2.3.
2.3.

Challenges faced by the Department in fulfilling its mandate The department reported that it faced a number of challenges in meeting its legislative and constitutional mandates.

These are grouped together under the following headings: • Financial challenges • Internal processes • Customers • People issues 2.3.1 Financial challenges The departmental operational budget was reduced by over R2.1 billion for the MTEF period from 2009/10 onwards.
The following areas were adversely affected: a) Information and Communication Technology (R260 million in 2011/12) Investment in IT has been identified as one of the key enablers for the department.
The budget cuts affected the maintenance plan of IT infrastructure resulting in the following problems: Ageing servers and other infrastructure; Out of warranty servers that pose a high operational risk; An inadequate business continuity plan; and Slow network impacting negatively on the turn-around in service delivery.
To address these challenges, the department will: Continue to engage the donor community for funding of the shortfall; and Consider IT services that can be performed in-house and save costs AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2534 b) Escalating safety and security costs The department has experienced serious crime related incidents against staff members and the public on its premises such as intimidation, murder, theft of state assets, theft of case dockets, court records, escapes and robberies with aggravating circumstances.
To curb these costs, a decision was taken to explore the possibility of using the South African National Defence Force (SANDF) to secure the department’s service points.

Discussions are underway and are expected to be the current security concluded during contracts.

tenure of the c) Infrastructure and expansion of justice services (R640 million in 2011/12) The department must address the historical imbalances relating to court infrastructure.

This is complicated by the following: i.


Escalation of infrastructure costs above inflation, which means the cash flow for building new courts is often insufficient and results in postponements in construction; ii.

Balancing the need for additional courts with the maintenance and accessibility programmes of existing courts; iii.

Using infrastructure accommodation; and budget for additional iv.

The growth in the establishment numbers and new areas of services.
To address the above challenges, the department will explore alternative funding methods, such as: i.

Build, operate and transfer (BOT); and ii.

Public-private partnerships (PPP).

d) Litigation against the state (R257 million in 2011/12) Litigation against the state has increased due to the following factors: i.

Progressive demands regarding the rights of citizens due to increased awareness; ii.

Opportunistic litigation against the state; iii.


Fragmented approach in the management of state litigation resulting in ineffectiveness; and iv.

Lack of an effective framework to invoke alternative dispute resolution mechanisms.

The following interventions will be implemented to curb the spiralling cost of litigation: i.

Develop a policy framework for the efficient management of state litigation.

ii.
ii.

Capacitate and enhance the Office of the State Attorney by increasing resources (human, financial and infrastructure).

AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2535 [Maandag, 15 Augustus 2011 iii.

The preparation and implementation of standardised fee structures for the payment of private counsel.

iv.

Development of an alternative dispute resolution process to either avert litigation or enable the formal court settlement of matters outside process.
the e) Other financial pressure points Other areas that have been severely affected by budgetary constraints are the following: i.

Increasing the establishment of the lower courts and providing the Judiciary (especially the Magistracy) with adequate tools of trade.

(R220 million over MTEF period) ii.


Expansion of the support personnel establishment in the courts (interpreters, finance and supply chain management personnel) as well as the personnel who perform quasi-legal functions relating to default judgments, court orders, warrants of execution, etc.

iii.

Implementation costs of new and proposed legislation.

(R86 million (2011/12), R202 million (2012/13) and R213 million (2013/14)) iv.

Document and record management.

(R50 million p.a.


over 3 years) v. Adequate provision of library services to the various courts and support services to the Judiciary.

vi.

Enhancement of programmes.

(R64 million in 2011/12) constitutional development 2.3.2 Internal processes a) Financial Management The Auditor General has expressed qualified opinions relating to financial management and non-compliance with procedures.
In 2008/09 the department improved on its qualifications and brought the Third Party Funds, assets, leases, leave and irregular expenditure down.

The department has two issues: Third Party Funds and irregular expenditure (PPPFA compliance) during 2009/10.

Indications are that the department may have a repeat finding on the Third Party Fund for the 2010/11 financial year but is aiming for an unqualified audit finding in 2012/13.
b) Fraud and corruption The department experienced an increase in the number of fraud and corruption cases in comparison to the previous two financial years.
AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2536 The department is committed to the implementation of the Minimum Anti-corruption Capacity Requirements (MACC) set as a public service anti-corruption standard, and is involved in a number of public service anti-corruption fora and interventions driven by the JCPS cluster.
The department is increasing its capacity in enterprise risk management to deal with fraud risk assessments in an improved manner and conduct more environmental scans to assist individual managers to manage their risks better.
2.3.3 Customers a) Masters’ Services (R324 million in 2011/12) The department entered into an agreement with Legal Aid South Africa to assist in the administration of the estates of child-headed households to: Minimise deceit and fraud against minor heirs; Improve the speedy access of minors to the benefits of the estate to alleviate their suffering; and Limit the exposure of small estates involving minors to legal fees.
b) MOVIT Project (Master’s Branch) The Home Affairs National Identification System (HANIS) was adapted through the Integrated Justice System (IJS) to suit the Master’s environment to verify clients.

The use of this technology has substantially improved the turnaround time of payments.

Integrated Case In addition, Management Systems (ICMS Master) has been deployed to all 402 magistrate’s offices that deal with deceased estates.
the The Master’s turnaround project aims to: i. rebrand professional service; the Master's services to deliver a highly ii.

build a strong service ethos, which include, among others, identification tags, uniforms and contact details of senior managers; iii.

identify and up-skill frontline staff to handle a wide range of enquiries; and iv.

increase accountability within all offices of the Master and the department.
In addition, the department will: Maximise the IT systems that have been implemented; and Initiate disciplinary hearings against cases of fraud by members of staff and refer matters to SAPS where necessary.

AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2537 [Maandag, 15 Augustus 2011 c) Maintenance Services implemented.
This In 2011/12, a turnaround plan for maintenance services will be includes expediting application procedures, application processing, payments and punitive measures for defaulting parents.
The maintenance that will be implemented during the 2011/12 financial year will address the following: turnaround project Improved management of customer complaints Service improvement Upgrading of skills for frontline staff Launch of an improved media and awareness campaign Business process improvements Amendment of legislation d) The Case Backlog Project (R224 million for DOJ, NPA and LASA for 2011/12) The case backlog reduction is aimed at reducing the number of backlog cases in the regional and district courts.
The aim of the backlog intervention is to ensure that the inflow of the number of new cases is balanced by the number of matters concluded.

intervention From the inception of the backlog reduction intervention in November 2006 until the end of December 2010, 32 650 criminal cases were disposed of in the additional backlog courts comprising: 21 706 cases finalised with a verdict; 9 708 cases withdrawn; and 1 236 cases transferred.
For the 2010 financial year (April to December 2010), the total number of cases disposed of by the district and regional court rolls was 12 702.

The backlog interventions are continuing in 2011/2012.

The department provided Infrastructure, court personnel, magistrates and budget.

Finalisation of these cases is largely influenced by the Judiciary and Prosecution.
resources form of the in e) Implementation of the JCPS delivery agreement and the CJS 7-Point Plan The cluster has adopted an integrated approach to the fight against crime, and will continue to improve prevention, detection, investigation and prosecution of crime in the pursuance of cluster coordination and activities relating to Outcome 3.
AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2538 Various protocols have received attention in terms of the implementation of the Seven-point Plan, e.g.

 The Bail Protocol; The Reduction of Regional Court Case Backlogs Project; The Forensic Chemistry Laboratories (FCL) Protocol; The Court Screening Protocol; and The Legal Aid Court Protocol.
f) Customer Service The department reported that it finalized the consultative process on the Service Charter and Service Standards.

The department the Executive Committee.

for approval by is waiting The department is currently strengthening its capacity to address the complaints received via the Presidential Hotline.

it has skill shortages, and under- It representation of women and people with disabilities, low productivity and low moral that impact service delivery.
reported that 2.3.4 People issues a) Relationship with Chapter 9 institutions the Constitution provides Section 181(2) of the independence of the Chapter 9 institutions and section 181(3) requires through legislative and other measures must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”.
that “other organs of state for The department will continue to assist and protect Chapter 9 institutions by: Facilitating the budgetary process and assisting with financial arrangements; Promoting proposals emanating from the reports of those institutions; Ensuring compliance with section 181(3) of the Constitution (assistance to Chapter 9 institutions); Evaluating the establishing Chapter 9 institutions; and investigating and legislation Promoting and maintaining communication channels between Chapter 9 institutions and the state.
3.

Committee Response: Questions/Issues to Consider Members of the Committee raised a number of questions and issues to the department.

AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2539 [Maandag, 15 Augustus 2011 3.1 Transformation within the department that the presentation but noted the department’s commitment the acting positions.
The committee The committee welcomed the presentation did not speak to the matter of transformation within the to Magistrates Commission and eradicate the department to provide figures for magistrates that were appointed in an acting capacity in the whole of South Africa, how long they had been in these positions, and when these appointments would be made permanent.

The committee noted that there were still not enough black magistrates in the magistracy.
There were none, or very few, black magistrates in the Pretoria magistrates court dealing with civil service cases.

requested 3.1 a) Department’s response The department explained the process for appointing a permanent magistrate.

There were three different categories of acting posts within the department.

i.

There were magistrates acting whilst the posts were vacant.
In the past financial year there were 91 vacant posts that were filled by acting magistrates whilst the department advertised to fill the positions.

ii.

The second category of acting position was when the department had to appoint acting magistrates for other sick magistrates.

This occurred on a daily basis.

iii.

The third category was acting magistrates appointed on a contract basis to provide additional capacity within the department.

This occurred when the department addressed the case backlogs.
The department received additional money from National Treasury to fund this specific project.

regional court The department had appointed 56 magistrates, 17 district court magistrates and would continue with those appointments in the new financial year.

When the department appoints acting magistrates it also appoints a interpreter, a clerk and a Legal Aid prosecutor, an representative to ensure a full complement that would allow the court to function.
The department advertised the third category posts as contract posts that would be periodically renewed.

The department deals with it on a contractual basis because the National Treasury had ring fenced the monies for a specific purpose and time period.

The National Treasury can withhold that money at any time and it was for this reason that the department contracts on a year to year basis.
At the end of the year National Treasury assessed the performance of the backlog courts and either allocated funding or removed it.

Many of the magistrates that applied were attorneys or advocates or private practitioners.

The magistrates may, at any point, when there were vacancies for permanent positions in the department, apply for such positions.

It was up to the magistrate to decide whether he wanted to stay in the contractual acting position.
AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2540 The department had identified a need for additional capacity within the establishment.

It needed a further 12 regional court posts on a permanent basis.

These posts were created and advertised and were in the process of being filled.

The department committed to supplying a written report on all the vacancies in the country per court.
The department noted the committee’s frustrations but also noted that the money covered in the presentation was for the additional magistrates on an acting appointment in terms of the backload case reduction programme.

The salary for magistrates comes from the state revenue fund and was a direct charge that was not included in the department’s budget.

The department requested that the committee bear in mind that it did not appoint the magistrates.
Appointments were dealt with by the Magistrates Commission.

The vacancies would therefore fall within the Magistrates Commission’s scope of work.

The removal of a magistrate was also not the department’s mandate and would fall to Parliament to authorise.

The Minister had appointed a new head of the Magistrates Commission and the department therefore expected to see the transformation agenda move forward.

The department had 1694 magistrates.

There were 442 African male magistrates or 26% of the total.
There were 249 African female magistrates amounting to 15%.

There were 60 Indian males, 89 Indian females, 77 Coloured males, 52 Coloured females, 478 White males, and 247 White females.

Black generic males amounted to 34%, white males 28%.

Black generic females amounted to 23% and white females 15%.

The judges total 226.

There were 70 African males, 22 African females, 14 Coloured males, 7 Coloured females, 10 Indian males, 12 Indian females, 73 White males and18 White females.
The department noted that there had been improvement in the figures but not as much as expected.

3.2 New court infrastructure The committee noted that the proposed new court in Mamelodi had soil turned by the previous minister but the budget to implement the building project was not allocated.

The department was requested to clarify the slow pace of delivering new courts buildings.
There also appeared to be a trend whereby the affluent areas received new services and upgrades but the rural areas, where the need was, received nothing.

The committee requested information on the upgrades to courts to facilitate access by disabled individuals to court complexes.

3.2 a) Department’s response The department agreed that 2 courts per annum were not enough.
The department agreed that the FIFA World Cup experience taught valuable lessons but the problem lay with the department’s insufficient budget allocation.

The department not only had to build capital projects but also had to maintain existing structures.

This severely constrained the department in building more courts.

The department also had to rehabilitate other courts and therefore some new courts, like Mamelodi, had to be delayed.
The department was AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2541 [Maandag, 15 Augustus 2011 currently working on maintaining three courts; the Ntuzuma court in Kwa-Zulu Natal, a court in Mpumalanga, and the Polokwane High Court.

The department agreed that infrastructure and courts still reflected the previous government order and courts were therefore situated in affluent areas.
The Mamelodi court only catered to criminal matters and therefore you would not find civil courts in Mamelodi.

The department admitted that there was no concerted effort to address the problem although soil was turned at Mamelodi.

The department had hoped that the planning would be completed that would allow the department to go on tender.

The department depended on the Department of Public Works (DPW), as the implementing agent, to finalise the planning.
They were not ready with the planning and therefore the moneys were shifted to a project that would be ready.

When the Mamelodi project was ready to go to tender the department could not carry the cash flow related to the expenditure.

The budget allocated was thus set aside for a number of projects and not one specific project and if DPW was not ready for implementation then the funds were committed to other projects.

This was the case in Mamelodi.


Construction projects were multi- year projects and once funds were committed to projects ready for funding, the department could not take on other projects because it could only carry a certain amount of cash flow.

The department acknowledged that the problem was poor planning as it had not aligned its planning to that of the DPW.

The department admitted that government in general had a problem with regularly maintaining its infrastructure.
Buildings in disrepair were more expensive to rehabilitate.

The department had to juggle its resources carefully and could only build 2 courts per annum.

It needed to take into account the projects that were already running and determine whether it could carry the cash flow needed to build a new court.

3.3 Department’s slow pace of delivery The committee noted that the department, in becoming financially compliant, appeared to be losing focus on delivering a service.
3.3 a) Department’s reply The department confirmed that in terms of the Public Finance Management Act (PFMA) and relevant treasury regulations it had to be financially compliant but in terms of its mandate it had to deliver services.

Although the department had prioritised a clean audit qualification its strategic plan commits itself to maintaining courts, building new courts and rendering services.
The department indicated that for the financial year 2008/2009 the department was qualified on 5 issues namely, Third Party Funds, irregular expenditure, leases, leave, and assets.

It managed to reduce the qualifications from 5 issues to 2.

The department was dealing with Third Party Funds and irregular expenditure.

The department had a long term plan to achieve a clean audit by financial year 2012/2013.
The department would achieve this by AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2542 improving its accounting systems and automating some services at courts thereby doing away with the manual system of accounting.

The department, since end 2010, had started applying the correct legislation to deal with irregular expenditure relating to supply chain management.
It had also significantly increased its human capacity within the supply chain management area and in the office of the Chief Financial Officer.

The department had appointed 3 Chief Directors, 1 Director and staff at the appropriate levels.

The department noted that in line with its desire to be financially compliant its expenditure had also improved significantly since 2008, and in the last two financial years it was at 99% expenditure.
3.4 Department’s assistance to Chapter Nine institutions The committee queried the department’s relationship with Chapter nine institutions and whether the Chapter Nine institutions were protected by the department in any way.

The department rendered no assistance to protect the Public Protector who was left alone to face the backlash of her report.

3.4 a) Department’s reply The Minister had a mandate to oversee Chapter Nine institutions and therefore there was an obligation imposed on the department.
The Chapter Nine institutions still maintained their independence as enshrined in the Constitution.

The report by Professor K Asmal dealt with the matter of the independence of Chapter Nine institutions but the report was still in Parliament and had not been finalised.

The department acknowledged that more could have been done to assist the Public Protector and would raise the matter with the Director General.
The South African Human Rights Commission (SAHR) amendment Bill would also go a long way to ensure the independence of the Chapter Nine institutions.

The amendments would bring it in line with the new Constitution.

The Ad Hoc Committee headed by Prof Asmal tabled a report that made recommendations but the report had not been adopted by Parliament.

The department, however, had looked at the report and were including some of the recommendations into the amendment bill.
3.5 Department’s efforts to contact victims of human rights abuses The committee queried whether the department had contacted the people who were declared victims of human rights abuses during the Truth and Reconciliation Commission (TRC) process.

3.5 a) Department’s reply The department still needed to do a lot more to contact victims identified during the Truth and Reconciliation process.
The department had only dealt with Parliament and Non-Governmental AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2543 [Maandag, 15 Augustus 2011 Organisations to contact the victims.

The department committed itself to engaging community radio stations to reach the victims whose reparation payments were still outstanding.

The department acknowledged that it needed to be more active on this issue.

3.6 Reduction of case backlogs The committee queried the reduction of the case backlogs.
The committee enquired how many cases were still outstanding and how many had been dealt with thus far.

The committee is concerned that awaiting trial prisoners were waiting too long for their cases to be finalised.

Many people had been found innocent after spending years in jail awaiting trial.

3.6 a) Department’s response The backlogs were reduced by about 10% per annum.

There were 38 000 backlog cases country wide for 2009/10 financial year but these were reduced to 35 000 by 31 December.
The last financial year the department managed to reduce the backlogs by 12 000 cases.

The acting appointments helped to reduce the backlogs.

Productivity at the courts was identified as a problem.

The courts need to sit more often than they were sitting now.

The committee agreed with the department but noted that the high case load of magistrates and judges exacerbated the problem.
The department reported that remand detainees or awaiting trial prisoners were causing overcrowding in the correctional facilities.

There were approximately 47 000 remand detainees country wide.

There were 676 prisoners longer than 21 months in prison.

The majority of the people were less than 18 months in a remand detention facility.

79% were there for 1 – 9 months and this amounted to 39 238 people.

4.
4.

Recommendation The Select Committee, having considered Budget Vote 24: Justice and Constitutional Development and the strategic plan of the Department of Justice and Constitutional Development supports the budget vote and recommends its approval.

5.

Appreciation The Committee expresses their thanks to the Department of Justice and Constitutional Development for the comprehensive presentations.

AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2544 2.
REPORT OF THE SELECT COMMITTEE ON PETITIONS AND MEMBERS’ LEGISLATIVE PROPOSALS ON ITS STUDY TOUR TO THE UNITED KINGDOM 1.

BACKGROUND The Select Committee on Petitions and Members’ Legislative Proposals, having conducted a study tour to the United Kingdom (House of Commons) and associated institutions on 16 – 22 October 2010, reports as follows: 1.1.

Delegation 1.1.1.
Delegation 1.1.1.

Members of Parliament The multi-party delegation was led by the Chairperson, Hon Mr A J Nyambi (ANC), other members comprised: Hon Mr D V Bloem (COPE), Hon Mr A G Matila (ANC), Hon Mr F Adams (ANC), and Hon Mr A Watson (DA).

1.1.2.

Support Staff The committee was accompanied by Mr T Madima (Committee Secretary) and Ms S Sipamla (Committee Researcher).

1.2.
1.2.

Terms of reference and purpose of the study tour The purpose of the visit was to learn from the House of Commons and the associated institutions on how to handle issues relating to petitions from the general public.
The purpose of the study tour was to: • obtain first-hand experience in interacting with legislators dealing with petitions in the House of Commons; • understand the challenges faced and the methods used to resolve them; and • observe and study the parliamentary proceedings and the value added to the processing of petitions by the committee.

2.

FINDINGS ON VISIT TO THE HOUSE OF COMMONS On 19 October 2010, the delegation was welcomed by Ms Sue Pamphlett, the Inward Visits Manager.
She gave a brief background on the week’s programme and invited the Honourable Members to ask clarity seeking questions and interact with the delegated staff and commissioned representatives.

AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2545 2.1.
[Maandag, 15 Augustus 2011 Presentation on the composition, functioning and legislative processes of the House of Commons Mr Mark Hutton, Clerk of the Overseas Office, House of Commons briefed the delegation on the composition and functioning of the House of Commons touching on the following points: 2.1.1.

Elections and Parliamentary Terms The most resent election was held in May 2010 and it resulted in the first coalition government for the United Kingdom supported by the House of Common.
The next election was reportedly planned for May 2015.

There is a maximum of three sitting days in a week.

Although term, constitutional changes were said to have been underway on several matters.

the parliament functions terms of a fixed in 2.1.2.

The composition of the House of Commons The United Kingdom has a bicameral legislature, meaning that they have two parliamentary legislative chambers.

The United Kingdom therefore has the House of Commons and the House of Lords.
Collectively there are 650 democratically elected Members of Parliament.

Parliament has an average daily attendance of 300 – 400 members.

The members are well-resourced, and they devote much of their time on expert issues.

The Leader of the House is a government minister.

2.1.3.

The oversight responsibility of the House of Commons The role of the House of Commons is to scrutinise legislation, oversee and investigate the Executive, while the House of Lords legislates in terms of standard procedures.
In the House of Commons, members raise issues and responses are often rapid, depending on the nature of the business.

Usually, questions are raised from the floor, and are predominately from the opposition.

There is no requirement to give prior notification to answer supplementary questions.

Diversity issues are priority in the United Kingdom.

2.1.4.

The role of the Speaker of the House of Commons The Speaker has the right to control the reasonable number of questions raised in the House of Commons.
The Speaker has controlling power over the procedure in the House of Commons and is therefore required to be impartial and divorced from party politics.

Consequently, the Speaker gives up his party membership, once AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2546 elected to this office.

The current Speaker is reportedly running for re-election.

2.1.5.
2.1.5.

The role of the Monarch As a result of the principle of royal sovereignty, bills are validated through royal accent.

However, the Queen acts on the advisement by the Prime Minister of the United Kingdom.

The Queen also has the right to dissolve parliament.

This royal right was last exercised in 1999.

Most Members of Parliament declare their allegiance to one of the three main political parties.
After a general election, the Leader of the party with most Members of Parliament is asked by the Queen to become Prime Minister who then forms a government to manage the country.

2.1.6.

Expert assistance Sometimes, local agencies are used for certain commissioned tasks.

There is also a large group of people who have no party affiliation and provide expert knowledge and assistance.

These are the academics, former speakers and civil servants.

2.1.7.
2.1.7.

Parliamentary support staff Members of staff are impartial, and if they opt to become members of parliament, they resign from their positions.

The Clerk is the Chief Advisor and sits in the Chamber with the senior colleagues.

2.1.8.

Absence of a Written Constitution Unlike South Africa, the United Kingdom does not have a written supreme Constitution.
They have however enacted a Human Rights Act, No 42 of 1998 and adhere to traditional human rights conventions and practices as endorsed by the European Union.

2.1.9.

Observations on the legislative process and Private Members Bills Ms Sarah Davies, Clerk of the Private Members’ Bills took the Members through the legislative and Private Members Bill process.

The process takes place on Fridays.


Currently Standing Order 14 specifies that annually 13 Fridays should be allocated to private members’ business.

There are three types of Bills, namely Private AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2547 [Maandag, 15 Augustus 2011 Bills, Hybrid Bills and General Members Bills.

The general laws are referred to as the backbenchers Members’ Bills.

(Private members are colloquially referred to as backbenchers).
When presenting the Bills, the Clerk refers to the short and long title.

The Member moves the Bill in the Chamber.

There are normally 100 Bills during the course of the year.

Members also deliberate on what is called a 10-minute rule-Bill.

The prime time is usually after statements.

Procedurally, it is somewhat strange in that it is like asking someone for permission on something you are entitled to do.
In terms of the ballot system, during the beginning of the session, there is usually a queue – for Members to be the first to put their Bills on a specific place in order for them to make a presentation.

Sometimes they use a ruffle system (tickets).

Members are increasingly using the Bills system.

The ballot system is only for members who apply to be on the ballot.

The rule is that if one wins the ballot, one presents.

Standing Order 14 provides for 13 Fridays for Private Members’ Bills.
Unless the House decides otherwise, these are the only Fridays on which the House sits.

However, it is acceptable to delegate this opportunity.

In terms of printing, as soon as they know who is at the top of the ballot, the printers do a lot of lobbying.

The Clerk receives more than 2 000 emails or letters about the source of the bill, and these letters are privately drafted.

The Scottish Parliament, private people are paid to draft the bills.

No bills can go through without a debate.


A bill is drafted, tactical decision is taken and lobbying government becomes a challenge.

The members also requested that their own staff (researchers and library staff) to draft advice, especially on short bills.

The success rate is below 1% as there is not much time for this process.

The timeline for the Private Members Bills is 13 days, and government has four days to finalize provisioning and tabling.

The image of an MP is important for exposure purposes.
Media and local press sometimes become controversial.

The House of Commons has an ancient right to resolve personal grievances.

Sometimes they receive 20 000 to 40 000 grievances in one session.

Currently members of parliament are lobbying for the scrapping of the Whip functionary.

AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2548 2.1.10.
Observations on the Petitions Process Ms Anne-Marie Griffiths, Clerk of Public Petitions briefed the delegation as follows: The Parliament of the United Kingdom receives an average of 100 to 200 petitions every year.

Members of Parliament first present the petitions behind the scene and then on the floor in the House of Commons.

They usually give notice a day before, and it appears on the Order Paper.

The short statement of the petition is read.

There are no speeches and no debates.


They hand the petitions to the clerk who places them in a bag.

This process of submitting a petition appears in Hansard as a standard Order of the House.

The House itself takes action, and has few options.

The petition is then referred to a particular Minister and the Select Committee.

Whilst conducting an inquiry, government does not get any formal request for it to respond to a petition.
Any citizen can send any petition in terms of the basic rules (they can only do that through members of parliament).

Citizens can still write to the Ministers and lobby them.

There are no specific procedures for the petition-process in the United Kingdom, and this has tremendous implications.

The petition process is not the best way of exercising power in the United Kingdom, because when petitions are not generated by Members, it simply means that when a member debates, it becomes his or her own debate.
Sometimes, they even use a method of signatures, which can generate up to 100 000 signatories when creating awareness.

It became very clear that Parliament of the United Kingdom does not give prominence to petitions, although the recent changes at local level demonstrate that they are obliged in terms of the law to ensure the processing of the petitions.

It is believed that the Parliament of Scotland is believed to be quite advanced in the petition process.

2.2.
2.2.

Presentation on United Kingdom E-Petition System Ms Lynn Gardner, Clerk of the Procedure Committee of the House of Commons briefed the delegation on the E-Petitions System: 2.2.1.

Background The delegation learnt that the United Kingdom primarily makes use of a paper-based petition system.

It was reported that although it is an old system, it is a highly treasured one.

There was a move to an electronic system of petitions, but it did not come to fruition as planned.
Subsequently, some concerns were raised in the use of petitions.

The system and process could be downloaded from the AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2549 [Maandag, 15 Augustus 2011 the internet.

Outside bodies predominately had constituted committee.

The system was open to mockery, especially as television personalities such as Jeremy Charles began to be more critical and also campaigned to be Prime Minister.
Petitioning parliament became a serious matter, and any member of parliament could take up the matter and present from the floor.

Government is expected to respond on the basis of whatever had been presented.

2.2.2.

Types of Petitions a) E- Petitions b) Normal: One person petitioning method c) 100 000 participation (people commenting on the process of legislating, in order to pass certain Bills).

2.2.3.
2.2.3.

Challenges of E-Petitioning The following challenges were identified: • • It proved to be very expensive.

In other words, there was insufficient funding for the project.

It was a security risk in the sense that one could not guarantee the authenticity of the process, since anyone could just sign as a petitioner, or duplicate signatures.

• There was lack of capacity to monitor and evaluate the process of petitioning.
• There was an inadequate number of support staff to process petitions, since they could receive more than 50 000 petitions annually, and the reputation of parliament became more and more under scrutiny.

• E-Petitioning was proven not to be a great idea, and did not have much success in the United Kingdom.

2.2.4.

Clarity seeking questions and comments The delegation was under the impression that the e-petitioning was up and running, hence it was also one of the reasons why it planned a study tour.
The delegation also felt that the e-petitioning in South Africa could help supplement the fingerprinting system, especially with departments like Home Affairs which demand high volumes of signatures and related matter.
Although South Africa does not use a highly sophisticated system of petitions, it is highly likely that should the system be introduced in the country, it would benefit a lot of AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2550 intellectuals and professionals.

The delegation wanted to know if any citizen could submit a petition to Parliament.

2.2.5.
2.2.5.

Response from the presenter to the clarity seeking questions and comments At the time of the establishment of the petitions office, there was a lot of enthusiasm.

However, the economy was down, and the process proved too much to sustain.

Along the way, personalities changed, and the Downing Street website was almost flooded.

The Chief Whip did not support the idea.


Furthermore, the new government did not support the new initiative and the House was not impressed with the introduction of the petition system, because the job was too cumbersome.

It was seen as a waste of money, especially because the select committee was already overburdened.

It is usually best practice if the public is given a chance to be heard.

Individuals and groups could have in Parliament.

In the past four years, i.e.


(2006 to 2009), there has been a decline in the presentation of the petitions.

Sometimes, members would be allowed two minutes on the floor to present petitions.

their views recorded Only citizens of the United Kingdom are permitted to submit a petition through a member of parliament.

Sometimes the petition system could be erratic and faulty or fictitious, especially if it does not say who sent it and there are no terms of reference on a particular matter.
It was then that an authentic system of petitioning was devised, in order to avoid fake petitioning.

United Kingdom reserves the right to protect the members who submit the petition.

The bag behind the Speaker’s desk is used to deposit the petitions, which are then collected for processing.

2.3.

Presentation on Information Services Mr Oonagh Gay, Head of Parliament and Constitution Centre of the Department of Information at the House of Commons briefed the delegation on relevant information services.
It was explained that, as part of the international experience, there were plans in previous parliaments to mainstream the petition agenda.

There has been a decline in the frequency of the use of petitions in the House of Commons over the past 20 years.

This is also due to the fact that there has been little feedback from individuals on the use of petition processes.

Hansard is available online, and research work is readily available as well.
AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2551 [Maandag, 15 Augustus 2011 The Parliament of Scotland has a successful e-petition process/system.

To-date, it is the best model, which uses technology a lot.

The Parliament of the United Kingdom is of the view that the e- petition system is less effective since it might cost up to 4 million pounds per annum to process/implement.

It was suggested that the petition system could work at local and regional levels.
However, when a petition is referred to parliament, it is expected of Parliament and the Executive to respond, stating institutional positions.

Members of Parliament feel that it is a good system of interacting with the constituencies.

2.3.1.

Clarity seeking questions and comments The delegation recommends the E-Petition as the best model, especially because technology is the way to go.

It was suggested in previous Parliaments that E-Petition could be utilized.
The delegation also wanted to know how effectively and safely the process of petitioning could be utilized and whether the UK has used the system in any other areas.

It was commented that the 2009 election in South Africa was successfully done through technology, where both the ruling party and the opposition parties were engaged.

The delegation concluded that the United Kingdom challenge is that they do not have a Population Register, and it is amazing how such system is sustainable.
The delegation also wanted to know if Hansard was still being outsourced.

2.3.2.

Response from the presenter to the clarity seeking questions and comments The United Kingdom has used technology throughout the election period.

The members of parliament wanted Westminster to engage individually on the use of e-petitions and e-tabling, as the number of questions has doubled.
The members of parliament and senior parliamentary staff view it as a lot of administrative function, unable to cope with at a given time.

Constituencies have to be engaged through the outreach programme, and more and more people became aware of the petition system.

However, e-petitioning does not reflect the people’s opinions.

There has been mass vibrancy and engagement in the area of electoral administration.
For verification purposes, political party members are registered at the electoral register and 200 local authorities are the custodians.

A number of different computer programmes are used.

AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 Maandag, 15 Augustus 2011] 2552 There is also a time delay mechanism to check the validity and any error that might arise.

Urban areas are usually in an advantageous position because of computer literacy and other modern usage of processes.
Although the United Kingdom has no written supreme constitution, they share a lot of policy issues with the Netherlands.

As to the Population Register comment it was clarified that the government of the United Kingdom does not see any constitutional crisis at all, since issues like passports and ID cards can be verified.

For instance, when a child is 16 years of age, he or she is sent a certain number by the department.

2.4.
2.4.

Presentation on the Hansard Society United Kingdom E-Petition System Dr Ruth Fox, Director of Parliament and Government Programme briefed the delegation on the work of the Hansard Society.

The delegation was informed that the Hansard Society is an independent, non-partisan political research and education charity.

They work in areas of parliamentary democracy and encourage greater public involvement in politics.

A number of private firms are used to report parliamentary proceedings.
However, after the spending scandal, Parliament has now reconsidered its spending pattern on who to use and when, in order to minimize the cost.

Hansard Society is a non-partisan body.

Hansard body only shares a name historically, but serves as a watchdog of parliament.

It looks at issue of legislative processes and procedure.

The House of Lords is regarded as political friends who defend parliament.

There is something regarded as digital democracy in which young people are engaged.
Children from 10 years of age are engaged in this.

Political literacy is taught, and a lot of educational programmes are put online.

There is a website called Lords of the Blog, which is used to keep the citizens up to date on the work of the House of Lords.

Currently, the procedural clerk is looking at better means of re- introducing e-petitions, so that the views form members of the public could be facilitated online, and responses could be sought.
The decision lies with the House since the matter first has to be referred to specific select committee.

Since there are new members of parliament, many of them do not understand the procedure followed, and that delays the process of formal and efficient process of petitioning re-establishing a AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011 2553 [Maandag, 15 Augustus 2011 parliament.
Members are often not trusted, and it is often difficult to have face to face interactions with larger groups.

Although there are democracy offices, people still feel a feedback mechanism could be the best route, particularly when they are informed on the issues around how government operate.

The following specific challenges were identified: • There is no good citizen education.

• Political education is not part of the curriculum.

• The history of education is not always transparent.
• Almost 3,5 million people are not on the population register.

• There are no legacy reports.

• Funding of Hansard society is a crisis.

3.

RECOMMENDATIONS AND CONCLUSIONS The delegation, having deliberated and exchanged views with its counterparts, considers the issue of E-Petition as the best route to follow for South Africa, since it would help in a number of areas in speeding up service delivery.
The committee would further explore the possibility of follow-up visits in countries which will be chosen during appropriate times, hoping that during such time South Africa would have implemented its latest system of petition-process.

Since South Africa has five Democracy offices countrywide, it would be wise to explore a possibility of utilizing these offices in the process of petitions effectively.
Centres such schools, post offices and other public institutions could be used for implementing e-signage and credential manager system as a way of introducing petitions.

Computer companies could be approached, in order to get their support technologically.

The possibility of inviting some international experts to present to the committee on how to establish an efficient e-petition system in South Africa would therefore have to be considered in future.

Report to be considered.


AANKONDIGINGS, TERTAFELLEGGINGS EN KOMITEEVERSLAE NO 95─2011